RI in midst of legal crisis

By Frans H. Winarta

JAKARTA (JP): The existence of the rule of law is the key characteristics of a legal state (rechstaat). Where there is the rule of law, all court decisions, that have acquired finality, should always become executable. Unfortunately, every time it is impossible to execute the court's ruling, it will also become impossible to protect the rule of law. Therefore, the court's decision should have the power of execution in order to ensure the rule of law.

The ideals of a legal state are clearly enshrined in the 1945 Constitution and are thought to be the ideals of the founding fathers of this republic. Furthermore, the Constitution even makes it clear that the ideal form of the state is a legal state, not a state based on power.

As we approach Indonesia's 50th Independence Day anniversary, we ought to re-examine whether all the ideals that our founding fathers once had are already a reality. Based on the recent comments made by our legal experts and practitioners, who have complained about various problems found in the implementation of the law, and based on the controversies between court decisions--including those made by the Supreme Court, we are forced to conclude that nowadays we are in the middle of a crisis of legal and court authority.

Add to that the belief that some kind of court Mafia exists in this country, the issuance of a "personal memo" that stood in the way of the law and prevented the execution of a finalized court decision, all lead us to believe that we are indeed in the midst of such a crisis.

The issue of a court Mafia was first brought up in the early 1980s. It was not followed by an improvement of the salary and benefits that a judge received. On the other hand, the tasks that a judge has to undertake continues to grow as the backlog of cases also grows. Needless to say, this should never be used to justify collusion and commercialization of court decisions.

Recently another controversy came up as several high-ranking officials in the judiciary system admitted that there was indeed a court Mafia. However, they claimed that the percentage of those involved was only 30 percent, as opposed to the 80 percent esti mated by former Supreme Judge Asikin Kusumaatmadja. As a matter of fact, to the common people it never mattered how big the percentage was. To them, the more relevant question is whether the court Mafia exists.

If it does, then steps should be taken to correct the situation. A "penalty and reward" system may have to be used, so that judges, who make proper and honest decisions, can be promoted, while those who repeatedly make controversial decisions should be penalized. Other sanctions should also be applied.

The unrealistic salary and benefits that a judge receives is certainly responsible for "commercialization" of court decisions. If executives of private corporations can earn three to five million rupiah per month, it should be quite reasonable for a judge on the first, as well as the second tier, and the Supreme Judge, to earn three to five million rupiah exclusive of fringe benefits.

While it is true that salary is not the only factor that determines a judge's professionalism, honesty and independence, a judge could work more comfortably if he got a sufficient salary and fringe benefits. He would become more focused in his job and he would also become more immune to persuasion and invitation to form a collusion. Honesty is for the conscience to decide. Professionalism can be improved through training, education, or studying overseas--particularly in countries where the law has become an essential part of life and where the law governs various aspects of human life.

In such countries, it would feel as if even breathing was regulated by the law. In those countries, people repeatedly say "Ask my lawyer" or "I want a lawyer". These are common phrases among all citizens, regardless of whether they are common people, businessmen or defendants. It is only in countries where law and order are respected and appreciated by the community that we can make meaningful and useful comparison with the situation in our own country.

A free judiciary authority is one that cannot be influenced or directed by both executive and legislative institutions. Such are the ideals contained in our 1945 Constitution. The constitution governing the state and the society has its wishes; however, whether the freedom and impartiality of our judicial institutions have indeed become a reality is still for us to evaluate.

If we take into consideration the aforementioned issues, it seems clear that the ideal of a legal state is still a utopian dream and is still far from becoming a reality. Recently, former chairman of the Supreme Court, Poerwoto S. Gandasubrata, admitted that there were external powers that exerted their influence over court decisions. These factors included telephone calls from powerful figures as well as memos, which are more popularly known by their Dutch version, kattebeletje. This admittance confirmed the lack of freedom and independence of our legal institutions. The confession came as a big shock to many, but it is the truth. The hypocrisy over our bureaucracy would go on forever unless we admit it and do something to improve it.

Our judiciary institutions can make appropriate decisions only if they are truly independent, impartial and honest. And the court can only be honest if it is honest enough to admit its own weaknesses. The question whether our court should be supervised by both the Minister of Justice and the Supreme Court, or whether it should fall under the auspices of the latter alone, has not been answered until today.

However, as the judges aired in a recent judges association seminar, in light of the declining authority of the court, it would be most appropriate for the court to be supervised only by the Supreme Court. The voice of a judge is the voice of God's representatives. Therefore, it should not be taken lightly and it should never be commercialized. It is deplorable if there are still judges who are guilty of the crime.

Our national development, which has emphasized economic and physical growth, has been at least partly responsible for the denial of the supremacy of the law. In turn, this has resulted in obstacles blocking our efforts in creating a legal state. Therefore, it is not surprising to see people compete in accumulating wealth, completely disregarding moral questions such as honesty and integrity. It seems as if the most important objective nowadays is to get extremely rich so that respect will follow. Human characters seem to have ceased to be important factors, as it is now more important to look at an individual based on what he is.

A judge is also a human being, and as such he is also vul nerable to temptations, particularly if the condition is indeed conducive.

The writer is an advocate and a corporate lawyer in Jakarta.